Tue | Oct 16, 2018

Attorneys wary of forced taking of DNA samples

Published:Tuesday | June 23, 2015 | 12:00 AMDaraine Luton
Donovan Walker: Passing these laws without training the people, you might end up breaching or causing more harm than good.
Peter Champagnie...This force taking of DNA can be subject to abuse

The Jamaican Bar Association has expressed concern over the taking of DNA samples by any police or correctional officer, with its president, Donovan Walker, saying that the provision for reasonable force to be used to take such material could lead to physical abuse of persons.

"This thing about reasonable force to take the thing, you could see an increase in the amount of broken jaws or mashed-up teeth when they are taking the sample," Walker said.

"Maybe we should look at the non-intimate sample being taken by an officer of a certain rank or above," he added.

Under the proposed DNA legislation, which is now before the Parliament, non-intimate samples such as saliva, hair other than pubic hair, nail or buccal swab can be taken from a suspect who has been detained for a relevant offence for the purpose of the generation of a DNA profile in respect of the person to be entered into the national database.

The non-intimate sample may only be taken if consent is given, in writing, or an authorising officer says this is to be done.

The bill defines an authorising officer as any person in the police force or army who has attained the rank of at least a sergeant, or in the case of the correctional services, a person of the rank of assistant superintendent or above.

Train sample takers

Walker said it would be good if the person taking the sample not only be of a senior rank but also be trained to take such sample.

He also raised concerns about the environment in which the sample is to be taken, arguing that care has to be taken that the DNA material being obtained is not contaminated.

"Taking it by itself is one thing, but when they are 'jukking' the swab down the man's throat in the back of the Black River lock-up, how sanitised is that area? How trained are the people?" Walker questioned.

"You passing these laws without training the people, you might end up breaching or causing more harm than good."

The bar association president, like Peter Champagnie, head of the organisation's subcommittee reviewing the bill, said that DNA science is a good law-enforcement tool that can help in both conviction and acquittal.

Champagnie told The Gleaner yesterday that a potential treatment for curing the mischief about compelling, under force, an accused person to give DNA sample, would be to to direct the judge how to apply an adverse treatment in a situation where an accused has refused to provide a sample.

"This forced taking of DNA can be subject to abuse," Champagnie said.

"Generally, the bill is well intended, because it can be applied, not just to the benefit of persons who are being prosecuted but also accused persons, but you can't have a situation of forced DNA taking ... because it will open itself up to abuse," the attorney said.